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The Five P’s of Criminal Defense

Ask your criminal defense lawyer to remember the “5 P’s: Prior Planning Prevents Poor Performance,” especially since your liberty and life depend on it! As a former prosecutor and now Fort Lauderdale criminal defense lawyer for close to 30 years now, I implore you to urge your criminal defense lawyer to file this defense motion on your behalf too:

The Defendant ___ (that would be you! 🙂 , by and through undersigned counsel, moves this Honorable Court for an order compelling the State to disclose the existence of any and all statements allegedly made by Defendant ___ (you again!), and to specify, with particularity, the exact details of such statements.The disclosure must be meticulous and complete, and Constitutionally adequate, including not only the literal content, verbatim, of any statements, but any gestures, inflections, tone or volume of voice, facial expressions, etc., surrounding or attached to such statements. NOTE: Prejudicial and inadmissible comments, opinions and speculations, constantly volunteered to embellish, to “spice up” testimony, is usually a total surprise, “disclosed” for the first time at trial: “The Defendant … seemed concerned … acted arrogantly … rolled his eyes … became highly emotional .. got agitated … became evasive … started to cry … shouted in a combative fashion … hung his head in shame … refused to make eye contact … ” to the extreme prejudice of the unsuspecting defendant. The disclosure requested (and Constitutionally required) in this Defense Motion is hereby putting the Defense and the Court on actual notice, inviting a pre-trial ruling on a Defense Motion in Limine, before a jury is poisoned and a mistrial is mandated.Additionally, the disclosure under this requested Order must encompass the specific details and circumstances surrounding each and every supposed statement, including the names, addresses, phone numbers, badge numbers, I.D. numbers, etc., of any and all persons present at each statement, whether the persons involved with, or present at, each claimed statement was a law enforcement (and if so, if the officer was in uniform or armed), the location, time and circumstances under which such statement was made, whether such statements were oral or written, video or audio recorded, and whether the statements are claimed to be spontaneously made or the product of interrogation, and whether the Defendant was being detained, or was under arrest or instead, was voluntarily at the location, or whether the Defendant was advised of his Constitutional Rights and Protections under the Fifth, Sixth or Fourteenth Amendments to the Constitution as per Miranda v. Arizona; and whether the statements were the result of a voluntary police/citizen contact, or the result of a temporary encounter based on “reasonable suspicion” or a stop and frisk (under Terry v. Ohio), or the result of a detention, or an arrest, or the execution of an arrest or search warrant, etc., and whether the Defendant was at gunpoint or handcuffed, or otherwise physically restrained at the time of each alleged statement.The Defendant is entitled to full disclosure of any and all statements attributed to the Defendant, with the surrounding details as listed above, intended to be introduced at the trial of this matter, in order to allow the Defendant sufficient time to do appropriate research, make a timely Motion to Suppress as well as a Motion in Limine.

Additionally, the Defendant is equally entitled to all such other statements, insofar as it is the Defendant’s privilege to be advised of such statements which may be exculpatory or consistent with any of the myriad of theories, explanations or mitigations of the prosecution’s theory of the case.

The Court is reminded, most respectfully, as is the State Attorney’s Office, that the failure to disclose all such statements violates Fla. Rules of Criminal Procedure, Rule 3.220 (b)(1)(C):

“This rule provides that the State shall disclose ‘any written or recorded statements and the substance of any oral statements made by the Defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements.” Curry v. State, 1 So. 2d 394 (Fla. 1st DCA 2009)’ p. 399.

In Curry, the Court found a violation when, “the State disclosed the name and address of the witness but did not disclose the substance of the oral statement that the Defendant allegedly made to the witness,” noting that:

“The fact that the Assistant State Attorney who tried the case was unaware of the violation is not a defense. The State is charged with constructive knowledge of information in the hands of law enforcement officers. See Tarrant v. State, 668 So. 2d 223, 225 (Fla. 4th DCA 1996). Likewise, an Assistant State Attorney is charged with knowledge of information held by other lawyers and agents working in the State Attorney’s Office. The legal obligations imposed by the discovery rules are not merely the personal obligations of a particular lawyer; they apply more broadly to the parties.” Id., P. 399

The Defendant has been diligently preparing for trial and pouring through available material, in an attempt to adequately and properly prepare this case for trial. This Motion to Compel is crucial if there is to be any chance of a well presented defense and ultimately a fair trial in this case.

Typically, and as in this case, there have been references to statements in vague and nebulous terms, with little specificity and less surrounding detail. These inadequate, misleading and invariably incomplete and prejudicial “responses” to standing discovery orders or statutory obligations (often just check marks on pre-printed checklists or forms) do not conform with nor satisfy Constitutional and ethical prosecutorial responsibilities — and nearly always lead to mid-trial crises regarding undisclosed (and therefore unchallenged) statements attributed to the Defendant.

Wherefore, the State must be compelled, at a minimum, to immediately disclose the existence of, and the details regarding, any and all statements allegedly attributed to the Defendant — or to aver that there are no such statements in existence, and this Court is respectfully requested to enter an Order compelling the State to make such disclosures.

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John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.